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Union of India defends Section 377 – 2

A division bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court continued to hear arguments in the matter of Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001, which challenges the constitutional validity of Section 377, Indian Penal Code, 1860 (IPC).

On 30th September 2008, the Additional Solicitor General (ASG) – PP Malhotra, sought to counter the petitioner’s claim that Section 377 infringes the right to life and liberty under Article 21.

Relying on Kharak Singh, Gobind v State of Madhya Pradesh and A.K Gopalan, the ASG attempted to argue that the petitioner’s challenge under Article 21 is not sustainable as Section 377 is a valid law.{According to these decisions, restrictions on Article 21 cannot be challenged if imposed by a validly enacted law.} Rejecting the submission, the Bench said that this principle has been overruled by Maneka Gandhi[4] and subsequent pronouncements of the Supreme Court. Drawing the ASG’s attention to a settled position in constitutional law, the Chief Justice said that the impugned law itself must be fair, just and reasonable to withstand the rigours of Article 21.

Second, the ASG argued that the right to privacy is not absolute and can be curtailed in favour of a competing interest. He cited HIV related judgments – Lucy D’Souza[5], Singareni Collairies[6] and Mr X v Hospital Z[7] to press that fundamental rights of people living with HIV can be abridged to protect others. The Chief Justice pointed out that this line of thinking is outmoded; though Courts have permitted mandatory HIV testing, the Indian Government has rejected such measures. Justice Murlidharan further questioned the relevance of these decisions to the present matter which challenges criminal sanctions against consenting adults.

Tripti Tandon, for Lawyers Collective

Third, the ASG argued that permitting sex between men will result in HIV transmission and be detrimental to public health. The Bench refused to agree with a "mere oral submission" and asked the ASG to place material on record to show that decriminalization of homosexuality enhances risk of HIV infection.

The Bench advised the ASG to advance other arguments, especially on whether public morality is a compelling state interest in prohibiting homosexuality. Justice Murlidharan reminded the ASG that, so far, he had not responded to arguments on dignity under Article 21.

Next the ASG sought to argue that Section 377 is unambiguous in its language and intent, and therefore, the Court could not go into the question of interpretation. The Bench clarified that the petitioners are not disputing the aim or scope of Section 377. Instead, they have argued that its application to private, adult consensual sex is unconstitutional. The ASG agreed not to press arguments on statutory interpretation.

The Bench rose at 1.10 pm. The hearing will resume on 1st October 2008 at 10.30 am or, in the event of a public holiday, on 3rd October at the same time.